First Amendment
Limitations
on Civil Law LiabilityThe issue: What
limitations
does the First Amendment place on the ability of states to impose civil
liability (through, e.g., defamation, invasion of privacy, or contract
law) based on the content of speech?

Introduction

Prior to 1964,
it was
widely assumed that state tort law was completely outside of First
Amendment
protection. With respect to defamation law in particular, the old
rule appeared to be that the Constitution extends no protection to
false
statements.

All this
changed with
the landmark case of New York Times v Sullivan, a case whose
importance
it would be hard to overestimate. Had the case been decided
against
the Times, it almost certainly would have produced a more timid
press and led to decisions to restrict the circulation of previously
national
magazines and newspapers to states unlikely to spawn
financially-threatening
defamation suits. In New York Times v Sullivan a unanimous
Supreme Court overturns an Alabama jury award of $500,000 entered
against
the Times for publication of a political advertisement that
allegedly
defamed Montgomery County Commissioner L. B. Sullivan. At least
with
respect to criticism of the official conduct of public officials it is
necessary, the Court said, for a defamation plaintiff to establish that
a false statement has been published with either knowledge of its
falsity,
or with reckless disregard as to its truth or falsity. This is
the
so-called "actual malice" standard. In subsequent decisions, the
Court extended the actual malice standard to cases involving public
figures as well as public officials, reasoning that public figures
assume a greater risk that they will be the subject of public scrutiny
and have the means available to respond effectively to what they
consider false statements about them.

Time
v Hillconsidered
whether the "actual malice" standard should also apply to a false light
privacy claim brought by the Hill family, who argued that they were
falsely
presented in a LIFE magazine story describing a play based on a crime
in
which they were the victims. Richard M. Nixon (between runs for
the
presidency) argued for the Hill family that as victims involuntarily
thrown
into a newsworthy event they should not have to meet the high burden of
an "actual malice" test. The Court, however, disagreed, 5 to 4.

Gertz v
Welch considers
three important questions: (1) whether the full protection of the
"actual
malice" standard should extend to comments about private persons, (2)
if
not, whether the Constitution might at least limit the sorts of damages
a private individual might collect for statements on matters of public
concern made without actual
malice,
and (3) if the actual malice standard is not extended to private
individuals,
how the line should be drawn between "public figures" and "private
figures."
The Supreme Court concluded that Elmer Gertz, the plaintiff in the
defamation
action and a leading Chicago civil rights attorney, was not a public
figure
for constitutional purposes. Moreover, the Court said, as a
private
person, Gertz need only show that a defamatory falsehood was made
negligently,
not that it was made with actual malice. Finally--in what turned
out to be a major victory for the media--the Court ruled that in the
absence of a showing of actual malice, private plaintiffs are limited
by
the First Amendment--at least with respect to comments about a matter
of
public concern-- to recovery only for actual damages, and not for
punitive
or presumed damages.

In its 1985
decision in Dun & Bradstreet v
Greeenmoss Builders, the Court provided its answer to the last
major constitutional question in the defamation area: what damages are
available to a private person (or corporation, in this case) when the
false statement of fact does not relate to a matter of public
concern? Distinguishing Gertz,
which did involve false statements relating to a matter of public
concern, the Court (5 to 4) found that Greenmoss Builders was entitled
to collect punitive damages when a credit-rating report falsely and
negligently stated that the company had filed a petition for
bankruptcy. The Court concluded that the First Amendment interest
in protecting false statements was substantially less when the
statements did not relate to matters of public concern. Of
course, the decision in Dun &
Bradstreet has the effect of requiring courts to draw a
sometimes difficult line between statements relating and not relating
to matters of public concern.

Hugo Zacchini
("The Human
Cannonball") was the plaintiff in Zacchini v Scripps-Howard.
Zacchini sued Scripps-Howard, the owner of an Ohio television station,
when--over Zacchini's objections--it filmed, and then broadcast on the
evening news, Zacchini's act of being shot out of a cannon at a county
fair. The Supreme Court sided with Hugo, ruling 5 to 4 that the
First
Amendment is not offended when liability (using a "right-of-publicity"
theory) is imposed for broadcasting an entertainer's "entire act."

Hustler
Magazine v Falwell
considered the constitutionality of a Virginia decision upholding an
award
against Hustler for publishing a parody advertisement featuring Moral
Majority
leader, the Rev. Jerry Falwell. The ad in question, a parody of
Campari
Liquor's ads running at the time, suggested that Falwell's first sexual
encounter was with his mother in an outhouse. Because no
reasonable
reader would believe the ad was factual, the award was based on an
"intentional
infliction of emotional distress" rather than defamation theory.
The Supreme Court ruled unanimously that the jury award violated the
First
Amendment. The Court saw no principled standard for separating
the
Hustler ad from, for example, hard-hitting political cartoons.

Rev. Jerry Falwell, the plaintiff in Hustler v
Falwell,
going down a waterslide in 1987.

Woody Harrelson played Hustler publisher Larry
Flynt
in a movie about the Falwell v Hustler case.

Finally, Cohen
v Cowles
Media considered whether the First Amendment protects a media
defendant
who first promises a source confidentiality, then discloses the name of
the source in a newsworthy story. The Court, 5 to 4, ruled that
when
liability is based on a generally applicable law (here, the common law
as it relates to promissory estoppel) the First Amendment is not
violated--even
when the disclosure of the source was accurate and newsworthy.

Montgomery County Sheriff urging civil rights
demonstrators
to disperse in March 1960. L. B. Sullivan, plaintiff in a
celebrated
defamation case, stands hatless to left of horse.L. B. Sullivan confers with local police
officials.

1. Why should the
First Amendment
protect speech that is flat-out false? What argument for
protecting
false speech is most persuasive?2. How many of
the
394 Alabamans that received the New York Times were likely to have read
the advertisement involved in N. Y. Times v Sullivan, linked
the
alleged defamatory statements to L. B. Sullivan, and--as a
result--lowered
their own opinion about how well Sullivan was doing his job?3. Do you agree with
Justice
Black's comment that in Alabama in the 1960s, the statements alleged to
be defamatory were more likely to enhance his reputation than to
diminish
it?4. For
purposes of
applying the actual malice standard, who should be considered public
officials?
A county prosecutor? A public defender? A dogcatcher? A receptionist in
the mayor's office?5. For
purposes of
applying the actual malice standard, what should be considered comment
concerning official conduct? A story about a governor's drunken
behavior
at a party? A story about a governor's habit of having
two-martini
lunches? A story about an affair that a governor is having?6. What do you
think
about the suggestion of three justices in Sullivan that even
deliberate
lies about public officials should be protected by the First Amendment?7. In what way
was
the Hill family injured by the LIFE magazine story inaccurately
describing
their experience as hostages?8. Would the
Hill
family have prevailed if it could show LIFE made up non-defamatory
quotes
(e.g., "You'll never get away with this" or "Get away from me, you
brute")
and falsely attributed them to Hill family members?9. Should it
matter
to the constitutional analysis in Time v Hill that the Hill
family involuntarily
became participants in the newsworthy event?10. Why should
public
officials and public figures have to show a higher degree of media
defendant
fault in defamation cases than private figures?11. After Gertz,
states are free to set their own standards of proof in defamation cases
involving private figure plaintiffs--provided that the standard is at
least
negligence (not just strict liability). Several states have set
higher
standards, ranging from actual malice to gross negligence. Which
states would you expect to be most likely to opt for stricter standards
of proof?12. What
should a
newspaper do to minimize its risk of liability in defamation
cases?
Should a paper, for example, distribute guidelines for fact-checking to
its reporters--or would this be a bad idea?13. Overall,
is Gertz
a good or a bad decision for the press?14. The Court
stressed in Zacchini
that the television station showed his entire act. What is an
entire
act? Why is it just the 15 seconds between takeoff and landing,
and
not the fanfare before the lighting of the cannon?15. If
Zacchini were
to have missed the net and broken his legs, could the station have
broadcast
the entire act?16. Would the
First
Amendment have protected the station in Zacchini if Hugo was
shot
out of a cannon in a public park?17. Is it
critical
to the outcome of the case in Zacchini that Hugo asked the
station
not to film his act?18. Do you
see any sound principle that would protect political cartoons, Jay Leno
jokes, and Saturday Night Life satire, but would allow liability to be
imposed against Hustler for a parody ad such as it ran about Rev.
Falwell?19. What
exactly is
"a generally applicable law" (Cohen) such as might allow
liability
to be imposed against media defendants, just as other defendants?
Trespass laws are an obvious example. But why isn't the law of
intentional
infliction of emotional distress (as involved in Hustler v Falwell)
a generally applicable law--it applies to stalkers and obscene phone
callers
as well as media defendants?